Shreve v. State

• Decision Date: 20 September 1984
• Docket Number: No. 68905,68905
• Citation: 322 S.E.2d 362,172 Ga.App. 190
• Parties: SHREVE v. The STATE.
• Court: Georgia Court of Appeals

Page 362

322 S.E.2d 362

172 Ga.App. 190

SHREVE v. The STATE.

No. 68905.

Court of Appeals of Georgia.

Sept. 20, 1984.

Earl Daniel Smith, Jr., Nahunta, for appellant.

Harry D. Dixon, Jr., Dist. Atty., Rebecca L. Littleton, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

The appellant, Robert Wayne Shreve, was convicted of a violation of the Georgia Controlled Substances Act for possession of less than one ounce of marijuana. Following his sentence to serve 12 months on probation upon payment of a $1,000 fine, Shreve appeals.

The appellant lived in a mobile home with his wife and children on a corner lot in Nahunta. Also situated on this corner lot, which was estate property of the appellant's wife's late father, were a chicken coop and a house, the latter occupied by the brother and sister of the appellant's wife. The chicken pen stood approximately 30 yards from the back of the appellant's mobile home, and the house was located either 21 feet (according to the appellant) or approximately 25 yards (according to one of the police officers) from the mobile home. Parked near the chicken coop were two junked vehicles owned by another brother of the appellant's wife.

On March 4, 1982, two Brantley County deputy sheriffs executed a search warrant to look for marijuana plants at the appellant's residence. The appellant was at work, but his wife agreed to show one of the deputies where the plants were. As she was leading him around the trailer, however, the other deputy discovered the 46 three-inch-tall marijuana plants growing in wooden containers behind the chicken coop. At trial, the appellant admitted that in the past he had tended the chickens in the coop, but claimed that he had not been to the coop within the last ten days before the discovery of the contraband. The appellant alone was arrested and charged with possession of the marijuana.

On appeal, Shreve contends that the evidence was insufficient to support the conviction, and that the trial court erred in instructing the jury on the inference of constructive possession.

Held:

"A connection can be made between a defendant and contraband found in his presence by evidence which shows that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others. Mitchell v. State, 150 Ga.App. 44, 46-47, 256 S.E.2d 652. Such occupation and control may be inferred when the accused is the owner or tenant of the premises upon which the illicit drugs are discovered. See Mason v. State, 146 Ga.App. 557(4), 247 S.E.2d 118." Morris v. State, 161 Ga.App. 141, 143, 288 S.E.2d 102 (1982). Under the "equal access" rule, however, the inference of constructive possession which attaches to an owner or lessee of certain premises is rebuttable by an affirmative showing that persons other than the defendant owner or lessee had equal access to the premises where the contraband was found. Farmer v. State, 152 Ga.App. 792, 264 S.E.2d 235 (1979); Heaton v. State, 139 Ga.App. 83, 227 S.E.2d 854 (1976). Where it is affirmatively shown that others had equal access or opportunity to commit the crime, the mere discovery of the contraband on the defendant's premises is insufficient to support a conviction. Prescott v. State, 164 Ga.App. 671, 297 S.E.2d 362 (1982); Gee v. State, 121 Ga.App. 41, 172 S.E.2d 480 (1970).

We note that the equal access rule generally does not apply to cases involving marijuana plants growing on the land outside the owner's or lessee's residence, on the basis that such contraband is stationary and requires "a period of months to grow, mature, and be harvested." Goode v. State, 130 Ga.App. 791, 792, 204 S.E.2d 526 (1974); accord Hendrixson v. State, 167 Ga.App. 517, 519, 306 S.E.2d 350 (1983). However, where the growing marijuana plants are in portable containers and easily moved, as in the instant case, we conclude that the equal access rule remains applicable. See Shockley v. State, 166 Ga.App. 182, 303 S.E.2d 519 (1983).

In this case, the scant body of evidence showed that the appellant and his family resided in a mobile home which was situated on a lot owned by the estate of the appellant's wife's late father; also situated on the lot was a house inhabited by two siblings of the appellant's wife. It does not appear from the testimony that separate lawns were designated for the house and the appellant's mobile home, and the appellant's testimony was uncontroverted that his wife's brother and siste...